HB 7072, An Act Concerning Equitable Relief And Enforcement Tools Available Under The Connecticut Antitrust Act

TESTIMONY OF THE CONNECTICUT HOSPITAL ASSOCIATION
SUBMITTED TO THE JUDICIARY COMMITTEE

Friday, March 7, 2025

The Connecticut Hospital Association (CHA) appreciates this opportunity to submit testimony concerning HB 7072, An Act Concerning Equitable Relief And Enforcement Tools Available Under The Connecticut Antitrust Act. CHA opposes Section 2.

Connecticut hospitals and health systems care for patients, strengthen the state’s economy, and support vulnerable communities across the state. Every day, they work to improve healthcare access, affordability, and health equity. Even as they face ongoing challenges, hospitals provide world-class care to everyone who walks through their doors, regardless of their ability to pay. Hospitals also support an exemplary workforce as the largest collective employer in the state, contribute significantly to the state’s economy, and invest in their communities addressing social drivers of health.

Section 2 of HB 7072 is intended to amend Section 35-34 of the Connecticut Antitrust Act. Section 35-34 authorizes both the state and private litigants to obtain equitable relief against threatened loss or damage to its property or business. This is in contrast to Section 35-32, which authorizes actions instituted by the state via the attorney general when the state acts in its sovereign enforcement capacity.

Section 2 of HB 7072 seeks to add the bolded language, “for equitable relief, including restitution, disgorgement and for injunctive relief.”

The one word that is objectionable is “disgorgement,” but only as it relates to actions brought by private litigants, not the state. Our objection to this language is based upon black letter law that disgorgement is a uniquely public remedy only available to the government, not to private litigants.

The leading Connecticut decision that discusses disgorgement is State v. Macko, 2016 WL 4268383, *9 (Conn. Super. Ct. 2016), which in turn cites to federal court case law that expressly holds that disgorgement is a remedy only available to government enforcers. The court in State v. Macko stated:

In support of disgorgement as a form of restitution, the plaintiff refers to the portion of § 42–110m(a) that affords the court with authority to award “such other relief as may be granted in equity.” Broadly speaking, the plaintiff seeks “restitution” for the defendants’ CUTPA violations. More specifically, however, the plaintiff seeks the equitable remedy of disgorgement. “Like other equitable remedies … disgorgement is a method of forcing a defendant to give up the amount by which he was unjustly enriched.” (Internal quotation marks omitted.) F.T.C. v. Bronson Partners, LLC, 654 F.3d 359, 372 (2d Cir.2011). “[D]isgorgement is a distinctly public-regarding remedy, available only to government entities seeking to enforce explicit statutory provisions.” Id. Moreover, “when a public entity seeks disgorgement it does not claim any entitlement to particular property; it seeks only to deter violations of the [ ] laws by depriving violators of their ill-gotten gains.” (Internal quotation marks omitted.)

If the committee intends to move forward with HB 7072 we request “disgorgement” be deleted in Section 2.

Thank you for your consideration of our position. For additional information, contact CHA Government Relations at (203) 294-7301.